# C_2018392EN.01001101.xml

| 29.10.2018 | EN | Official Journal of the European Union | C 392/11 |
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29.10.2018

EN

Official Journal of the European Union

C 392/11

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Appeal brought on 16 August 2018 by České dráhy a.s. against the judgment of the General Court (Eighth Chamber) delivered on 20 June 2018 in Case T-621/16 České dráhy v Commission

(Case C-539/18 P)

(2018/C 392/15)

Language of the case: Czech

Parties

Appellant: České dráhy a.s. (represented by: K. Muzikář and J. Kindl, advokáti)

Other party to the proceedings: European Commission

Subject matter

Appeal against the judgment of the General Court of 20 June 2018 in Case T-621/16 České dráhy v Commission.

By that judgment the General Court dismissed the action brought under Article 263 TFEU in which České dráhy sought the annulment of Commission Decision C(2016) 3993 final of 22 June 2016 in Case AT.40401 — Twins. The General Court also ordered České dráhy to pay the costs.

Form of order sought

| — | set aside the judgment of the General Court of the European Union of 20 June 2018 in Case T-621/16 České dráhy v Commission, EU:T:2018:367; |
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set aside the judgment of the General Court of the European Union of 20 June 2018 in Case T-621/16 České dráhy v Commission, EU:T:2018:367;

| — | annul Commission Decision C(2016) 3993 final of 22 June 2016 in Case AT.40401 — Twins; |
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annul Commission Decision C(2016) 3993 final of 22 June 2016 in Case AT.40401 — Twins;

| — | order the European Commission to pay the costs of České dráhy in connection with Case T-621/16 and those of České dráhy in connection with the appeal proceedings. |
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order the European Commission to pay the costs of České dráhy in connection with Case T-621/16 and those of České dráhy in connection with the appeal proceedings.

Grounds of appeal and main arguments

In support of the appeal České dráhy puts forward four grounds of appeal.

| 1. | First ground of appeal: in so far as the Court of Justice allows the appeal of České dráhy in Case T-325/16, it should also allow the present appeal.
  By the appeal against the judgment of the General Court of 20 June 2018 in Case T-325/16, České dráhy seeks for the Court of Justice to annul in its entirety the decision of the Commission ordering an inspection carried out at the seat of České dráhy in April 2016. The Commission’s decision of 22 June 2016, which České dráhy seeks to have annulled in the associated case, was adopted on the basis of documents seized during that earlier inspection. If, then, the Court of Justice allows the appeal of České dráhy in Case T-325/16 (that is, if the Court of Justice finds that the earlier inspection was entirely unlawful), it should also annul the contested decision of the Commission of 22 June 2016. |
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1.

First ground of appeal: in so far as the Court of Justice allows the appeal of České dráhy in Case T-325/16, it should also allow the present appeal.

By the appeal against the judgment of the General Court of 20 June 2018 in Case T-325/16, České dráhy seeks for the Court of Justice to annul in its entirety the decision of the Commission ordering an inspection carried out at the seat of České dráhy in April 2016. The Commission’s decision of 22 June 2016, which České dráhy seeks to have annulled in the associated case, was adopted on the basis of documents seized during that earlier inspection. If, then, the Court of Justice allows the appeal of České dráhy in Case T-325/16 (that is, if the Court of Justice finds that the earlier inspection was entirely unlawful), it should also annul the contested decision of the Commission of 22 June 2016.

| 2. | Second ground of appeal: the General Court did not examine whether the documents on the basis of which the second inspection was ordered had been seized within the unlawful part of the first inspection, and it decided as if the first inspection had been ordered entirely in accordance with the law.
  The documents on the basis of which the second inspection was ordered were seized in the preceding (first) inspection of the Commission at the seat of České dráhy. By its judgment in Case T-325/16 the General Court annulled in part the Commission’s decision ordering the first inspection, to the extent that it did not concern alleged predatory pricing on the Prague-Ostrava route. České dráhy considers that the documents on the basis of which the Commission ordered the second inspection were seized in the unlawful part of the first inspection (the Commission would not have come across them if it had carried out the first inspection solely to the lawful extent) and could not therefore be used as a basis for ordering the second inspection. The General Court did not examine those questions. |
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2.

Second ground of appeal: the General Court did not examine whether the documents on the basis of which the second inspection was ordered had been seized within the unlawful part of the first inspection, and it decided as if the first inspection had been ordered entirely in accordance with the law.

The documents on the basis of which the second inspection was ordered were seized in the preceding (first) inspection of the Commission at the seat of České dráhy. By its judgment in Case T-325/16 the General Court annulled in part the Commission’s decision ordering the first inspection, to the extent that it did not concern alleged predatory pricing on the Prague-Ostrava route. České dráhy considers that the documents on the basis of which the Commission ordered the second inspection were seized in the unlawful part of the first inspection (the Commission would not have come across them if it had carried out the first inspection solely to the lawful extent) and could not therefore be used as a basis for ordering the second inspection. The General Court did not examine those questions.

| 3. | Third ground of appeal: the General Court assessed on the basis of an incorrect legal criterion whether those documents on the basis of which the Commission ordered the second inspection were related to alleged predatory pricing on the Prague-Ostrava route.
  The General Court proceeded from the incorrect legal criterion that practically any documents found at the seat of České dráhy could be linked with assessing the alleged predatory pricing of that company on the Prague-Ostrava route (according to that legal criterion, the Commission’s inspection directed to alleged predatory pricing is practically unlimited). On the basis of that incorrect legal criterion the General Court came to the conclusion that the Commission had been entitled during its first inspection to seize the documents on the basis of which it subsequently ordered the second inspection. |
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3.

Third ground of appeal: the General Court assessed on the basis of an incorrect legal criterion whether those documents on the basis of which the Commission ordered the second inspection were related to alleged predatory pricing on the Prague-Ostrava route.

The General Court proceeded from the incorrect legal criterion that practically any documents found at the seat of České dráhy could be linked with assessing the alleged predatory pricing of that company on the Prague-Ostrava route (according to that legal criterion, the Commission’s inspection directed to alleged predatory pricing is practically unlimited). On the basis of that incorrect legal criterion the General Court came to the conclusion that the Commission had been entitled during its first inspection to seize the documents on the basis of which it subsequently ordered the second inspection.

| 4. | Fourth ground of appeal: the General Court’s decision on costs is wrong.
  České dráhy contends that the General Court rightly had to allow the application and thus also order the Commission to reimburse České dráhy the costs of the proceedings. |
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4.

Fourth ground of appeal: the General Court’s decision on costs is wrong.

České dráhy contends that the General Court rightly had to allow the application and thus also order the Commission to reimburse České dráhy the costs of the proceedings.

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